Fuller v. Fuller

Whitehouse, J.

This is an amicable proceeding in equity

for the purpose of obtaining a judicial construction of the will of Thomas Fuller. It is presented on bill and answer, the defendants admitting as true all the statements offactinthe bill.

The will is inartificially drawn, but it is not difficult to discern the real purpose of the testator pervading the instrument. And although certainty and security in the disposition of landed *479 property suggest a reasonable regard for settled rules of construction, as aids in discovering the intention, still when that intention can be gathered from the whole will taken together, the law will not suffer it to be defeated because in a particular clause an estate is not described with technical accuracy.

By the first item of the will the testator gives to his wife, Adah L. Fuller, the "use” of the homestead " during her life.” It is a familiar principle that the gift of the income of real estate is a gift of the real estate itself, and that a gift of the use of real estate for life, is the gift of a life estate. Sampson v. Randall, 72 Maine, 111. The effect of the plain and unambiguous language of this item is, therefore, to give the widow a life estate in the entire homestead, and the estate created in favor of the son, John Gr. Fuller, in the homestead, is subject to the life estate of the widow.

By the third item of the will, the testator first "wills and bequeaths ” to his son, John Gr. Fuller, an undivided third of the homestead, and then adds : "If the said John G., after the death of my wife, Adah L. Fuller, will pay to his brother and sisters then living the sum of one hundred dollars each, he shall then come in full possession of the house, lot and furniture, including crockery and other household-ware.” The quantity of interest thus devised must be determined with reference to the provision of the statutes (K. S., c. 74, § 16,) that, "A devise of land conveys all the estate of the devisor therein, unless it appears by his vrill that he intended to convey a less estate,” and to the great maxim of testamentary construction already noticed, that the obvious "will” of the testator shall govern, and not fail for -want of apt phrases or conventional formulas.

According to etymology the word "possess ” means to sit upon; hence to occupy in person, to have and to hold. Thus the first lexical meaning given to the word in the Century Dictionary is, " To own; have as a belonging, property.” The second definition in Webster’s dictionary is, "To have legal title to.” In popular usage the -word "possessions” includes real and personal property to wrhich one has title; as " his *480 landed possessions,” " the French possessions.” So in Scripture, "The house of Jacob shall possess their possessions.” The legal idea of "possession” though varying according to circumstances, still embraces the conception of right as well as that of physical control. In the first clause of this item, the testator had already willed to John G. an undivided third of the same homestead, and when it is considered that a life estate had already been given to the widow and that John G. could only come into "full possession” of this property upon the payment of legacies amounting contingently to five hundred dollars, the conclusion is irresistible that the testator intended to give this son, on payment of the legacies named, the same estate in the entire homestead which he had already given in the undivided third part, and that in both instances he contemplated a remainder in fee after the termination of the widow’s life estate. Whether the provision respecting the payment of these legacies was intended as a condition precedent or as a condition subsequent is not important to this inquiry. If, as the language of this clause implies, the property was intended to be devised on a condition precedent, no further security for the payment of the legacies could be necessary; if on a condition subsequent the estate would, indeed, vest in the devisee immediately on the termination of the life estate only to be defeated by failure to pay the legacies within a reasonable time ; or even if the provision is construed as merely imposing upon the devisee the duty of paying the legacies, thus making them a charge upon the real estate the result in either view, so far as the point under discussion is concerned, is substantially the same. An acceptance of the devise in either case involves the obligation to pay the legacies, and the situation is, therefore, equally expressive of a purpose to give the devisee a remainder in fee. Bugbee v. Sargent, 23 Maine, 269 ; Merrill v. Bickford, 65 Maine, 119; Drew v. Wakefield, 54 Maine, 291; 2 Redf. Wills, 304, 323 ; 3 Jarm. Wills, 22 etseq. ; 2 Perry on Trusts, § § 571, 572.

It is, therefore, the opinion of the court that, "if John G. Fuller after the death of Adah L. Fuller will pay to his brother and sisters then living' the sum of one hundred dollars each” he *481 will then own the house and lot in fee simple and have an absolute title to the furniture including crockery and other household-ware described in the third item of the will.

The second item of the will provides that the widow "shall be permitted to take such portions” of his money and credits, " or the whole of it, as she may deem necessary for her comfort and support, without being restricted in any manner from receiving the same. Her receipt for any such amount shall be all the voucher required in accounting for the same.” The seventh item further provides that any money or property not herein devised, which "shall remain in the estate” after the death of the widow, shall be equally divided among the then living heirs.

It is undoubtedly a settled rule in this State to allow the donee for life to have the actual possession of personal property thus bequeathed unless the will otherwise provides. And it is now equally well settled that personal property may be limited over by way of remainder after the expiration of a life interest. Sampson v. Randall, supra; Starr v. McEwan, 69 Maine, 334; Warren v. Webb, 68 Maine, 133. But where the property consists of money which may be easily lost or wasted the general rule is that a legatee must give some reasonable security to preserve the funds for the remainder-man, or the money may go into the hands of a trustee of whom a bond may be required. Whittemore v. Russell, 80 Maine, 297.

While the testator was here careful to secure to his widow not only the income of his money and credits, but the principal also, if she deemed it necessary for her comfort and support, he was no less careful to provide in subsequent items that any balance not expended by the widow should be divided among his heirs, and that the share which might thereby come to three g'rand-children named, should be "deposited in the savings bank until they reached the age of twenty-one years ” and then divided as therein specified. In these provisions, and that declaring the widow’s receipt to be the only voucher required in accounting for the funds, it is clearly implied that the money and credits were to remain in the custody of the executors who *482 were to supply without restriction all the demands of the widow and at her decease the surviving executor was to render an account of what was left that it might be distributed among the heirs. The share belonging to the minors named, was to be deposited in some bank to be selected by the executor.

It was evidently contemplated by the testator that the authority of the surviving executor should be thus continued after the death of his wife for the purposes named ; and such a course is expedient and desirable. Whenever any duty implying a trust is created by a will and there is no special designation of the executor or any other person as trustee, nor any provision in the will for the appointment of the trustee, it devolves upon the .executor as such to administer the estate according to the provisions of the will. Nason v. Church, 66 Maine, p. 108 ; Richardson v. Knight, 69 Maine, p. 288. By the express desire of the testator, the executors are relieved from giving bonds; but when it appears necessary or proper the judge of probate on application of any party interested may require them to give bonds as in other cases. B. S., c. 64, § 8.

The "furniture including mockery and other household-ware ” mentioned in the first and third items of the will do not belong in the category of articles quae ipso usu consumuntur. 2 Will. Exrs. 1397; Marston v. Carter, 12 N. H. 159. They may depreciate by using, but as they are not necessarily consumed in that way, the legatee having a right to the use of them for life is under ordinary circumstances entitled to have and retain possession of them upon signing and delivering to the executor an inventory of them without giving security to the remainder-man for their preservation. 2 Will. Exrs. 1396 ; Whittemore v. Russell, supra. No duty implying a trust is imposed on the executors with respect to the " furniture including crockery and other household-ware” in this case. As one of them has a life estate in those articles and the other the remainder, the matter is easily adjusted between them.

All parties being equally desirous of obtaining the opinion of the court, no costs are to be allowed to any of them; but the executors may charge in their administration account such *483 expenses as have been necessarily incurred by them in these proceedings, and the judge of probate will make such allowance as may be deemed just and reasonable.

Decree accordingly.

, Peters, C. J., Walton, Libbey, Emery and Haskell,, -JJ., concurred.